GOVINDARAJU v REGINA

Court of Criminal Appeal (NSW)|2011-07-06|Before: Bathurst CJ, Hall J, Harrison J

Judgment 1BATHURST CJ : I agree with the orders proposed by Hall J and with his Honour's reasons. 2HALL J : The applicant, Balamurugan Govindaraju, by notice dated 6 April 2011, seeks leave to appeal in respect of a sentence imposed upon him in the District Court on 16 July 2010. 3The applicant was charged with an offence of importing a substance, being a border control drug, namely, heroin, the quantity of which was said to be a marketable quantity, contrary to the provisions of s.307.2(1) of the Criminal Code 1995 (Cth) ( "the Code" ). 4The maximum penalty for such an offence is 25 years' imprisonment and/or a fine of $555,000: see s.307.2(1). 5The applicant was sentenced to a term of imprisonment of 9 years commencing 12 April 2009 and expiring on 11 April 2018. The sentencing judge imposed a non-parole period of 5 years, 4 months and 24 days. Accordingly, the earliest date upon which the applicant will be eligible for release on parole will be 4 September 2014. 6The following two grounds of appeal were relied upon:- "1. The sentencing judge erred in finding an aggravating factor was that the applicant's role was greater than that of a courier. 2. The sentencing judge erred in using the statement of assistance as evidence of the objective gravity of the offence." 7At the hearing, leave was granted for the applicant to rely upon a third ground. On 6 July 2011, the applicant filed a Supplementary Grounds of Appeal in which the following addition ground was set out:- "3. Her Honour erred in failing to allow procedural fairness to the applicant by her finding, as an aggravating factor, that the applicant's role was above that of a courier without providing the applicant the opportunity to make submissions to the contrary."

Background 8The applicant was born on 3 June 1978. He was, accordingly, 30 years of age as at the date of the offence, namely, 12 April 2009. 9The applicant advised that he was married with no children. His wife or former wife is presently said to reside in Indonesia. The evidence in this Court established that she has separated from the marriage. 10In Malaysia, the applicant worked in various factories as a factory hand and, on two occasions, he went to Singapore in search for better paid work. It appears that he was there employed as a truck driver as at the date of the offence. 11He had not previously visited Australia and had no family or other contacts when he arrived in this country. 12He is not adversely recorded against any criminal law enforcement indices in Australia. However, evidence was produced at the sentencing hearing which indicated that he has a limited record of criminal offences in Malaysia and Singapore. I will refer to his criminal history later in this judgment.

Circumstances of the offence 13At the sentencing hearing, the Crown tendered a statement of facts which established the following matters. 14The applicant arrived at Sydney Kingsford Smith Airport at about 6.55 pm on Sunday 12 April 2009 aboard a Malaysian Airlines flight from Kuala Lumpur, Malaysia. He was travelling on a Malaysian passport with a visitor's visa which was valid in Australia for three months. 15On arrival, he was questioned by Customs Officers. He advised that he had travelled to Australia from Malaysia after a two week stay in India where surgery had been performed on his shoulder. He indicated that the purpose of his trip to Australia was for a short seven day holiday. 16He subsequently told Customs Officers that, whilst in India, he had been given gold to swallow and smuggle into Australia. 17He consented to undergo an internal search and, in due course and following admission to St George Hospital, Kogarah, he passed a total of 75 foreign objects (pellets). 18On 15 April 2009, he was charged. On 16 April 2009, investigations determined that the 75 pellets contained compressed off-white powder, the gross weight of which was 594.9 grams. These were analysed and were confirmed as being heroin. The purity of the heroin was 62.6%. The total pure weight of heroin imported by the applicant was calculated to be 372.4 grams. The "street value" of 594.9 grams of heroin was estimated at between $148,725 and $267,705. 19The applicant did not give evidence at the sentence hearing. Accordingly, t he details of the applicant's background are based upon the history as recorded in a psychological report by Dr Katie Seidler, clinical and forensic psychologist dated 11 September 2009. The report was tendered at the sentencing hearing and became Exhibit 1. 20Dr Seidler noted that the applicant appeared to be "somewhat unsophisticated, both socially and intellectually" . She obtained a history of the applicant's father dying in about 2003. His mother was living in Malaysia and had health problems. His eldest brother was said to have died in 2007 in a motor vehicle accident. The loss of his brother was said to have had an impact upon him. 21He attended school in Malaysia and competed primary school. He ceased mid-way through his second year of high school (Year 8) in order to pursue employment and begin contributing financially to the family. 22The report set out the history of various employments in factories from the age of 15 in Malaysia including a period in a restaurant conducted by his aunt. He travelled to Singapore to obtain work at a factory, but eight or nine months later he returned to Malaysia where he resumed work as a factory hand in a plastics factory. 23At some unknown time, he returned to Singapore again in the search for work but was unsuccessful and again moved back to Malaysia. He again commenced work at a factory where he was involved in stock keeping duties and truck driving. 24In February 2009, he injured his left shoulder in a motor cycle accident. It seems it was not long after this incident that he travelled to Australia. 25In 2008, he married an Indonesian woman. She was apparently required to return to Indonesia for visa reasons in June 2008, several months after they were married. He maintained contact with his wife, although with some difficulties. As indicated above, they have since separated. 26The applicant admitted to some use of alcohol and on three occasions experimenting with cannabis. 27In paragraph 33 of Dr Seidler's report, there is a history concerning events that were said to have led to the applicant's involvement in the subject offence. According to that history, he was contacted by an acquaintance of an uncle who allegedly offered him a sum of money to transport drugs into Australia. 28It was then recorded that the applicant described a fairly protracted process whereby he was met by a number of Indian and African men. He then travelled to India and was put up in a hotel, which was said to have been funded by these men. According to the applicant, he remained in their company for approximately three weeks, during which time his visa and air ticket were obtained, and other travel arrangements were made on his behalf. The history records that it was during this period that he was instructed to swallow the drugs he was to transport to Australia. The applicant said that he had considerable difficulty with this, but was informed that he would be left stranded in India and forced to make his way back to Malaysia if he was unable to swallow the pellets. 29According to the history in the report (paragraph 34), the applicant indicated that his decision to import drugs to Australia was based on his need to finance a cardiac operation for his mother. The surgery, in this respect, was said to be crucial and that neither he nor his mother could afford to finance it independently.

Remarks on Sentence 30The sentencing hearing took place on 2 July 2010. The matter was adjourned until 16 July 2010 on which date the sentencing judge delivered her remarks on sentence. 31In relation to the applicant's role in the importation, the sentencing judge determined that it was greater than that of a mere courier. In that respect, her Honour stated (ROS, p.7):- "I find that the role played by him was that of an importer of a large quantity of high grade heroin. The potential street value of that drug was significant - between $148,000 and $267,000. Considerable planning had gone into the intended importation. He had met with those higher up in the hierarchy in Malaysia. He travelled with them to India and remained in their company for three weeks. He ingested the drugs. He returned to Malaysia and then flew on to Sydney, with a view to providing the pellets to an unnamed person in Sydney. In addition to his travel costs, he was to be paid for his role. I find he played an essential role in the importation of this quantity of heroin. He was involved at a greater level than a mere courier, demonstrated by his involvement with the identified men over a three-week period of time, during which time he had left his home country in order to participate in this crime. That, to my mind, aggravates the offence over and above a mere courier from one's homeland to a foreign country. " (emphasis added) 32Her Honour went on to state that assistance provided to the Australian Federal Police "... discloses a greater knowledge of the whole syndicate than what a mere courier could be expected to know, although his assistance was of no benefit" (ROS, p.7).

Grounds of appeal 33Grounds 1 and 3 overlap and, accordingly, will be considered together.

Ground 1: The sentencing judge erred in finding an aggravating factor was that the applicant's role was greater than that of a courier

Ground 3: Her Honour erred in failing to allow procedural fairness to the applicant by her finding, as an aggravating factor, that the applicant's role was above that of a courier without providing the applicant the opportunity to make submissions to the contrary 34Ms R Mathur of counsel, who appeared in this Court on behalf of the applicant, observed that the Agreed Statement of Facts tendered by the Crown did not expressly stipulate the role played by the applicant other than to say that he imported into Australia 372.4 grams of pure heroin. 35It was acknowledged in those submissions that the role played by an offender in effecting the importation of drugs is an important factor in determining the seriousness of the offence and the appropriate sentence. 36In relation to the sentencing judge's finding that the applicant's role was more than that of a mere courier, it was contended that there was insufficient evidence to establish that that was the fact beyond reasonable doubt. Reference was made in the submissions for the applicant to the High Court's judgment in Olbrich v R (1999) 199 CLR 270 at [27] and [28]. 37It was submitted (Written submissions at [12]):- "... There was limited evidence with respect to the applicant's ' involvement ' with the three men whilst in India. The only evidence before the court was that it was during this time that his visa, ticket and travel arrangements were made. The sealed envelope containing [person's named inserted] statement takes the matter no further. It was further observed that the reference in Dr Seidler's report to the applicant's account that he was told that if he did not ingest the pellets, he would be left stranded in India and forced to make his own way back to Malaysia does not bespeak of a man whose role could be described as greater than that of a courier." 38In summary, the submission for the applicant was that there was no evidence to support a finding that there were additional acts performed by the applicant to place him above a courier in the hierarchy of the drug importation venture. On that basis, it was contended that the sentencing judge erred in imposing a sentence that was not warranted in law. 39Counsel for the applicant relied upon statistics for offenders who pleaded guilty to an offence under s.307.2(1) of the Code involving the importation of heroin. It was said that these figures, inter alia, indicated that 95% received a sentence of less than 9 years. Of those, 97% received a non-parole period of 5 years or less. Accordingly, it was said that the statistics placed the applicant's sentence in the top 5% for offences under the above section. 40The contention was that, having regard to the actual acts known to have been performed by the applicant, neither the role played by him nor the quantity of drug involved, warranted a sentence which placed his term of imprisonment in the top 5% of all offenders dealt with under the section of the Code. 41In response, the Crown observed, firstly, that the role played by the applicant is a matter of importance in assessing the objective criminality of his offence and, secondly, that he had the onus of proving, on the balance of probabilities, that he was a "mere courier" so that such a finding mitigated his culpability in the importation of the drug. The Crown added that characterising the role of an offender by reference to a descriptive tag or label (eg couriers and principals) must not obscure, or be a substitute for, an assessment of what the offender did: Olbrich (supra) at 278. 42The Crown also observed that the applicant did not give evidence, as was his entitlement. However, that left the judge with a "paucity of evidence" in relation to the extent of his involvement in the criminal enterprise in question. 43The Crown acknowledged that the Statement of Facts did not indicate the role played by the applicant in the importation beyond referring to the quantities and nature of the drug and the internal concealment of the pellets. However, it submitted that the details of the circumstances in which the applicant came to commit the offence were set out in paragraph 33 of Dr Seidler's report. The report had not been admitted into evidence on any limited basis. 44It was also submitted that there was no evidence which either directly or indirectly was inconsistent with paragraph 33 of Dr Seidler's report. Accordingly, it was submitted no error had been disclosed by the sentencing judge in assessing the objective gravity of the offence. 45In his oral submissions, Ms Mathur contended (transcript, 6 July 2011 at p.2):- "In my respectful submission, that finding that the applicant was more than a mere courier, was material error. It was a material error as it had led, firstly, to an aggravating circumstance. That aggravating circumstance led to, and has a bearing on, the objective seriousness of the offence. The objective seriousness of an offence when it is heightened, leads to either a sentence which is increased or a starting point which is increased. Her Honour at first instance expressly stated in her reasons that the offence had been aggravated. In my submission to the Court, that is a material error. It infected or affected the sentencing discretion ..." 46Ms Mathur further contended that, in relation to drug offences, two matters which are of significance in determining the objective seriousness of such offences are the role of the offender and the quantity of the drug involved. In the present case, the applicant's role, it was submitted, was wrongly assessed as greater than that of a courier. This had led to a sentence that was higher than was warranted in the circumstances. 47It was additionally submitted on behalf of the applicant that he was denied procedural fairness, in circumstances in which no submissions at all had been made before the sentencing judge in relation to the history contained in Dr Seidler's report and no notice had been provided to the applicant's counsel as to the sentencing judge's intention to take the history in Dr Seidler's report into account as a possible basis for establishing a role greater than that of a mere courier. 48It was alternatively submitted that the history in the report, even if taken into account, did not justify a finding that the applicant was more than a mere courier. It was argued that the finding made to the contrary was erroneous, firstly, because it was made in breach of the procedural fairness requirements and, secondly, it was contrary to the evidence tendered at the sentencing hearing.

Consideration 49There are, in my opinion, certain difficulties with the finding made by the sentencing judge that the applicant's role was greater than that of a mere courier. 50Firstly, no submission to that effect had been made by the Crown at the sentencing hearing. Secondly, no notice was provided by the sentencing judge that she may act on the basis that the history recorded in Dr Seidler's report was evidence capable of supporting a finding that his role was greater than that of a mere courier. 51After the hearing had been adjourned on 2 July 2010 and resumed on 16 July 2010, the record indicates that no further submissions were taken in the matter and her Honour immediately proceeded to deliver her remarks on sentence. 52In the circumstances to which I have referred above, it was, in my opinion, incumbent upon the sentencing judge to give notice of her intention to consider whether the evidence could support adverse finding on sentence in circumstances where no such finding had been sought by the Crown. The absence of notice in the present case, of course, explains why there was no submission by either party on the question as to whether such a finding was open based upon the history set out in the medical report and in circumstances where the agreed statement of facts made no reference to that matter. 53The requirement to afford procedural fairness to an offender in sentencing proceedings has arisen in various contexts. In Baroudi v R [2007] NSWCCA 48, the applicant contended that the conduct of the sentencing judge during submissions on sentence strongly suggested that he intended to act upon a concession made by the Crown Prosecutor in relation to the length of the non-parole period. However, in this remarks on sentence a little over a month later, the judge did not refer to the Crown's concession and imposed a non-parole period of around 12 months longer than the concession. It was submitted that the judge erred in failing to provide reasons for ignoring the Crown's submission and in failing to warn the applicant that he intended to impose a far longer sentence than that contemplated in the Crown's submissions to the Court. It was contended that the applicant had been denied procedural fairness and that, as a result, the proceedings had miscarried. 54In that case, Price J (with whom Sully and Howie JJ agreed):- "33. In the present case, it was open to the Judge to indicate that either his views were tentative or that he neither accepted nor rejected the Crown concession. Such an indication would have afforded counsel to opportunity to dissuade the Judge from imposing a lengthier sentence. With respect to his Honour, his inadvertent failure to do so denied the applicant procedural fairness." 55In Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, the Court of Appeal considered a procedural fairness issue in somewhat more extreme circumstances where a District Court judge had disposed of an appeal by increasing the appellant's sentence, substituting a custodial sentence for a non-custodial penalty. In the course of his decision Kirby P (with whom Handley and Sheller JJA agreed) observed:- "... Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view. ... It is sufficient to say that, given the seriousness of the order which he was contemplating, (the judge) ought to have exposed his thinking to counsel for the claimant. Against the background of the considerations already mentioned, the high desirability of doing so amounted to an obligation ..." 56Finally, in R v Tadrosse (2005) 65 NSWLR 740, it was asserted that the sentencing judge erred in taking into account two matters of aggravation under s.21A(2) of the Crimes (Sentencing Procedure) Act 1999. Howie J at [19] observed:- "In my opinion, a sentencing judge would be prudent to raise with the parties during addresses whether any of the factors listed in s.21A(2) apply to the particular sentencing exercise being undertaken. If the sentencing judge considers that any of the aggravating factors listed are present, it seems to me that, in fairness to the offender and as a matter of good common sense, the judge should indicate to the offender's legal representative that he or she is considering taking that matter into account so that, if necessary, the Court might be persuaded that the aggravating feature is not present or for some reason it should not be taken into account in the peculiar circumstances of the particular case." 57On consideration, I have concluded that the sentencing judge was required to warn or give notice to the applicant that she contemplated at least the possibility of relying upon the history set out in Dr Seidler's report as evidence relevant to a determination as to whether the applicant's role was more than that of a courier. In circumstances in which the agreed facts did not suggest the contrary and in which the Crown made no contention that the applicant acted other than as a courier, fairness, in my respectful opinion, required the sentencing judge to indicate that she proposed to regard the history contained in the report as material that could establish that the applicant had acted in a role that was more than that of mere courier. 58A further matter of concern is that, with respect, the sentencing judge appears to have read too much into the history recorded by Dr Seidler in paragraph 33 of her report. In that respect, I note the following:- (1) There is no indication as to who the "Indian and African men" were or what their position or role was in relation to preparations for the importation. (2) There is no indication that in the three weeks that the applicant was in the company of the three men he was actively doing anything in relation to the criminal enterprise. What the men were doing and why they were waiting there for three weeks is unknown. It may well have been that the Indian and African men were simply functionaries who were there to implement the necessary arrangements at the direction of others preparatory to the ingestion of the pellets by the applicant and him then travelling to Sydney. (3) I accept the submission to the effect that the threat made to the applicant that, if he did not swallow the pellets, he would be forced to make his own way back to Malaysia suggests that he was not participating at a medium or high level in the enterprise but rather was being told what to do and was threatened if he did not act in accordance with those directions. 59Accordingly, I have concluded that the sentencing judge was in error in making the adverse finding as to the applicant's role. 60The history set out in Dr Seidler's report, as I have indicated, did not, in my opinion, support the inferences drawn by the sentencing judge. The fact that the applicant was in India with the unspecified persons for three weeks without more could not convey the applicant's role was more than that of courier. He may well have been told to arrive at a particular time and was then kept waiting around for three weeks. The fact that he was said to have been in the company of those men does not, of itself, indicate that he, in that period of time, was engaged in any activity associated with the forthcoming importation. 61Accordingly, I do not consider that paragraph 33 of Dr Seidler's report provided a sufficient foundation from which the sentencing judge reached the conclusion she did about the applicant's role. 62The impugned finding was potentially a matter of significance, insofar as her Honour expressly referred to it as having been an aggravating factor in determining the seriousness of the offence. The inference is that the sentence was determined in light of her Honour's findings as to the objective and subjective factors. 63The question as to whether or not the sentence was manifestly excessive or was otherwise the subject of appellable error is discussed below.

Ground 2: The sentencing judge erred in using the statement of assistance as evidence of the objective gravity of the offence 64At the sentencing hearing, the Crown tendered an Assessment of Assistance provided by the Australian Federal Police. It was tendered in a sealed envelope. 65The submission for the applicant was that, insofar as the evidence of assistance revealed anything of the applicant's role in the commission of the offence, it went no further than (and indeed it was submitted significantly less than) the evidence in Dr Seidler's report as to the applicant's role. 66Whether the use of evidence of assistance was restricted, it was observed, will depend on the circumstances, but normally the information cannot be used against an offender: Bourchas v R (2002) 133 A Crim R 413 at [99]. 67It was also submitted that, insofar as the evidence of assistance disclosed matters such as where the offender stood in the hierarchy of an organisation involved in the importation of drugs, or that explained how the offender became involved and the offender's state of mind, such evidence may be relied upon by the offender to be used in his favour but not used in aggravation of his criminality in respect of the offence: R v Meggett (1999) 107 A Crim R 257 at 261 per Wood CJ at CL. 68It was argued in this case that the sentencing judge referred to the evidence of the applicant's assistance in her remarks when her Honour stated (ROS at p.7):- "His attempt to provide the Australian Federal Police with assistance discloses a greater knowledge of the whole syndicate than what a mere courier would be expected to know, although his assistance was of no benefit ..." 69On behalf of the applicant, it was submitted that, leaving to one side the issue of whether or not such a finding was open on the evidence, the sentencing judge erred in using the evidence as to assistance for the purpose of finding it to be evidence "as disclosing a greater knowledge of the whole syndicate than what a mere courier would be expected to know" . It was argued that the sentencing judge erred in using the evidence against the applicant to determine the role he played in the importation and thereby the objective criminality of the applicant: Bourchas (supra). 70In the written submissions for the applicant, it was stated that it is by no means clear from her Honour's remarks that the information was used against the offender. However, when read in context, it was submitted it is apparent that the view being expressed by the sentencing judge is that the evidence of assistance was confirmatory of the conclusion that her Honour had already reached, on other evidence, that the applicant was more than a "mere" courier: Crown's written submissions at [21]. 71It was submitted that the error compounded the error the subject of Ground 1 and led to a sentence which was not warranted in the circumstances. 72The Crown alternatively submitted that, even if error had been shown in the use made of the assistance statement, it was not one that was material to the outcome and that this Court would not intervene, particularly as the sentence, it was submitted, was appropriate. 73Whilst I consider it is arguable that her Honour did impermissibly utilise the Statement of Assistance adversely to the applicant, by reason of my conclusion in relation to Grounds 1 and 3 and the matters discussed below in relation to the sentence imposed, it is not necessary that I express any final or concluded opinion on the matter raised by Ground 2.

Do the sentencing errors warrant intervention? 74It was noted in the Crown's written submissions at [24] that the submission for the applicant (written submissions at paragraph [14] and the final sentence of paragraph [17]) suggested that the sentence imposed was so high as to be outside the available arrange, and thereby was manifestly excessive. 75In that respect, it was observed that this Court may not substitute its own opinion for that of the sentencing judge merely because (if it be the case) the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her own discretion: Lowndes v The Queen (1999) 195 CLR 665 at [15]. 76The question, the Crown observed, was whether the result reached by the learned sentencing judge has been "upon the facts ... unreasonably or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance" or, in other words, was the sentence "manifestly wrong" : Dinsdale v The Queen (2000) 202 CLR 321 at [22] per Gaudron and Gummow JJ. 77The Crown contended that the evaluative judgment made by the sentencing judge addressed all relevant considerations and has not resulted in a sentence that could be said to be obviously wrong or not open: DPP (Cth) v De La Rosa (2010) 273 ALR 324 at [69] per Allsop P. Accordingly, the sentence could not be viewed as manifestly excessive. 78The Crown referred to the general sentencing principles concerning serious federal drug offences enunciated in R v Nguyen; R v Phan [2010] NSWCCA 238 at [72] per Johnson J (with whom Macfarlan JA and R A Hulme J agreed) including:- (1) Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of the drugs imported. (2) The amount of the drug is a highly relevant factor in determining the objective seriousness of the offence. (3) Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served. 79The Crown submitted that it could not be contended that the findings made by her Honour were not open. In this respect, it was noted that her Honour referred to both the nature and the weight of the drug involved. It was also submitted, that her Honour took into account relevant subjective factors and gave them appropriate weight as well as allowing a full discount for the applicant's plea of guilty.

Consideration 80Although no separate ground was raised contending that the sentence imposed was manifestly excessive, in the course of Ms Mathur's submissions in relation to Grounds 1, 2 and 3, a number of matters were raised which it was contended had resulted in a sentence that was greater than should have been imposed had the asserted errors in sentencing not occurred. 81Ms Mathur, whilst acknowledging the limited use of the statistics, relied on the statistics referred to earlier in this judgment which put the applicant's sentence fell within the top 5% of sentences for offences of the kind in question. In this respect, reliance was placed upon the fact that the amount of the prohibited substance (pure heroin at 372.4 grams) was "at the lower end when the range goes between two grams and 1.5 kilograms" (transcript, 6 July 2011 at p.6). 82Ms Mathur submitted that, having regard to the amount of the drug involved and the role played by the applicant, the offence was "unremarkable" (transcript, p.6). 83Reliance was also placed upon subjective factors, in particular, the fact that the applicant had come from a background of poverty and that he would spend time in custody under more difficult circumstances than others by reason of his limited English and the fact that he had no family ties in Australia. Ms Mathur stated "... In my submissions, those three factors make it, as I indicated, a somewhat unremarkable offence and would not warrant a sentence which places it in the top 5% of sentences with respect to sentences of this nature" (transcript, p.6). 84It was also submitted for the applicant at [17]:- "The applicant participated in this offence to raise funds to finance his mother's cardiac operation. She has since passed away, leaving the applicant with one surviving family member, namely, his sister. He has no family or friends in Australia. He is culturally isolated. He pleaded guilty in the Local Court, attempted suicide subsequent to his incarceration and as accepted by the sentencing judge, he is remorseful and contrite. The starting point in this case, before the discount for the plea of guilty, was 12 years. Taking into account the circumstances of the case, a lesser sentence was warranted at law: s.6(3)." 85In the Crown's written submissions (paragraph [34]), a list of comparable cases was provided, it being noted that the Court's primary concern was with consistency in the application of the relevant legal principles: Hili v R (2010) 272 ALR 465 at [48]-[50]. The Crown contended that a consideration of such "comparable cases" does not provide a basis for the submissions that the sentence in question was manifestly excessive. Reference was made to sentencing cases referred to by McClellan CJ at CL in De La Rosa (supra) and to the summary of cases in R v Nikolovska [2010] NSWCCA 169 at [74]. 86It is not necessary for the purposes of the present application to review all of those cases. It is sufficient to note the following:- R v Mirzaee [2004] NSWCCA 315 87In that case, the offender entered a plea of guilty to an offence under s.233B(1)(b) of the Customs Act 1901 in respect of trafficking in heroin. 88The amount of heroin imported was 578 grams of pure heroin (in contrast to the present case of 372.4 grams of pure heroin), the trafficable quantity being 2 grams. 89The street value (which was the subject of some dispute) was argued as being $2 million. 90The offender's role was that of a courier. He was aged 57 and was given the benefit of a 25% discount for an early plea. 91He applied for leave to appeal from a sentence imposed comprising a non-parole period of 6 years and a balance of term of 3 years. This Court reduced the non-parole period from 6 years to 4 years and 6 months. R v Pham [2005] NSWCCA 314 92The offender pleaded guilty to importing heroin, being not more than the trafficable quantity under s.233B(1)(b) of the Customs Act . The offender was aged 27 years. 93The amount of pure heroin involved in that case was 244.6 grams, which represented 122 times the trafficable quantity of heroin (2 grams). 94The wholesale value of the heroin was $120,000. The street value was estimated at between $611,500 and $856,100. The offender was a low level drug importer. 95The sentence imposed below comprised a non-parole period of 5 years and 6 months and a total sentence of 9 years. On appeal, the sentence was reduced to a total term of 8 years involving a non-parole period of 4 years and 6 months. Le v R [2006] NSWCCA 136 96The offender, aged 40 years, pleaded guilty to an offence under s.233B of the Customs Act in respect of an amount being not less than the trafficable quantity of heroin, namely, 117.6 grams of pure heroin (140 grams gross weight). 97The applicant was a courier and had a low cognitive ability. 98He received a sentence of 7 years and 6 months imprisonment with a non-parole period of 5 years. 99This Court dismissed the appeal. 100In R v Bezan [2004] NSWCCA 342, the appellant was sentenced on appeal to 8 years imprisonment with a non-parole period of 5 years for the importation of a trafficable quantity of heroin in contrary to s.233B(1)(b) of the Customs Act . The offender had personally imported 490 grams of powder containing 260 grams of pure heroin (worth as much as $900,000) in a marble chess board. He was convicted of the offence by a jury. He was not merely a courier, but had no criminal history 101In addition to the above cases, the Crown referred to sentences imposed in the following cases:- (1) Teehan v R [2006] NSWCCA 401. (2) R v Tran [2007] QCA 221; (2007) 172 A Crim R 436. (3) R v Jimson [2009] QCA 183. 102Ms Mathur in his oral submissions identified the way in which he challenged the sentence imposed (transcript, 6 July 2011, at pp.7-8):- "The crux of my submission is that the court may well find when it looks at the table outlined in De la Rosa there may well be a number of cases that assist the applicant in his submission that this was a sentence of the upper range and there may well be cases that say that this is within the range. The important issue in this case, however, is that the appeal is under s 6(3), namely, that although the range of sentences may be considered is not considered to the same extent as it were being argued that the sentence was manifestly excessive. The key issue is, was an error made, was it a material error and did it infect or affect the sentence imposed. Had that error not been made would a lesser sentence have been imposed and when looking at what a lesser sentence is the court looks at the statutory regime and in this case s 16A and those factors therein and sentencing principles. When looking at that in my submission a lesser sentence would have been warranted irrespective of the fact that there may be cases that are factually analogous that end with the same sentence, namely, a head sentence of 9 years and a non parole period of around the five year mark." 103The applicant having entered a guilty plea to a Federal offence, namely, an offence under s.307.2(1) of the Code, in the event that this Court intervenes the re-sentencing task is to be undertaken in accordance with the relevant statutory provisions concerned with sentencing to be found in Part 1B of the Crimes Act 1914 (Cth). 104In the event of re-sentencing, determination of an appropriate sentence requires this Court to impose a sentence by application of the principles provided for in s.16A(1) of the Crimes Act . The Court in that regard must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. In such determination, the Court is required to have regard to the list of matters which a sentencing court is to take into account in determining sentence to be passed or ordered to be made as provided by s.16A(2), insofar as those matters are relevant and known to the Court. The latter provision also permits other matters to be taken into account. 105Division 4 of Part 1B of the Crimes Act , in the circumstances of the subject offence, requires that the Court either fix a single non-parole period in respect of the sentence to be imposed or to make a recognisance release order: s.19AB(1)(d) and (e). In the determination of a non-parole period, the Court is to be guided by the general principles identified by the High Court in Power v The Queen (1974) 131 CLR 623; Deakin v R (1984) 58 ALJR 367; Inge v The Queen (1999) 199 CLR 295; Bugmy v R (1990) 169 CLR 525. See also Hili (supra) at [40]. 106I have concluded that, for reasons set out above, the sentencing process in the Court below miscarried and that the sentencing errors to which I have earlier referred resulted in a sentence which was excessive to the point that this Court should set aside the sentence and re-sentence the applicant. 107In the determination of both the head sentence and the non-parole period, it is, of course, necessary to have regard to the objective seriousness of the offence including, in particular:- (1) That the offence involved the importation of pellets containing compressed powder, the gross weight being 594.9 grams with a 62% purity resulting in a total pure weight of heroin of 372.4 grams. (2) The approximate street value of the heroin was said to be between $148,725 and $267,705. (3) That the applicant's role was that of courier. 108In relation to subjective circumstances, the following matters are also to be taken into account in determining the sentence to be imposed including the non-parole period:- (1) The evidence from Malaysian authorities which establishes that the applicant had a relatively minor criminal history including one drug offence, possession of a drug, committed on 8 June 2001 for which he was sentenced to a term of imprisonment of 3 months. (2) The subject offence, accordingly, represents the only serious drug offence committed by the applicant. (3) The applicant is presently aged 33 years. He was raised in Malaysia in circumstances in which, by reason of poverty and injury to his father, he was required to enter the workforce at the age of 15 years, ceasing study mid-way through his second year of high school to pursue employment and contribute financially to his family. (4) He was assessed by the clinical psychologist, Ms Seidler, as being a low functioning man intellectually and, in many ways, was naive socially, which factors, it was suggested, would well have contributed to his decision-making concerning his involvement in the illegal importation. His offending behaviour was assessed as being not of a kind consistent with an inherent anti-social character. (5) The applicant's custodial case management file, relevant extracts of which were attached to the affidavit of Janet Kae Witmer, solicitor, confirmed that, since being in custody:- (a) He has demonstrated good work performance and has demonstrated a positive attitude towards his work. (b) That he has at all times demonstrated a polite and courteous manner to staff and other inmates within the prison industries. (c) That he has followed directions given to him by staff and there have been no custodial problems associated with him. 109Finally, in the determination of sentence, I have had regard to the sentencing for like offences to which attention has been drawn on behalf of both the applicant and the Crown. 110In re-sentencing the applicant, I have concluded that an appropriate sentence is an overall term of 8 years with a non-parole period of 4 years and 3 months, the latter representing a ratio of the non-parole period to the total term of approximately 53%. 111I accordingly propose the following orders:- (1) Leave to appeal granted. (2) Appeal against sentence upheld. (3) The sentence imposed by the District Court on 16 July 2010 be set aside. (4) That the applicant be sentenced to non-parole period of 4 years and 3 months imprisonment to commence on 12 April 2009 and to expire on 11 July 2013 and a balance of term of 3 years and 9 months to expire on 11 April 2017. 112Accordingly, the first date upon which the applicant will eligible for release on parole will be 11 July 2013. 113HARRISON J : I agree with Hall J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2011

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